Commentary and Analysis Regarding Colorado Law

Many local governments have determined within the past few weeks to send a ballot issue or question to their voters in the November 2016 election. This act of setting the ballot language for the issue or question triggers the application of the Colorado Fair Campaign Practices Act (“FCPA”) (§ 1-45-117, C.R.S.) For the local governments, this means that they are expressly prohibited from expending public funds to support/oppose any candidate for public office and any ballot issue before the voters. This include a prohibition on contributions of public funds and contributions of “in kind” public services.

However, the FCPA does permit the expenditure of public funds/resources and the use of public employees' time/resources only for the printing of a factual balanced and fair summary which includes arguments both for and against a proposal on any issue of official concern before an electorate. The summary cannot urge a vote in a particular manner (“VOTE YES”). It should be noted that unless the matter is referred to your voters by your board, it is not of “official concern” and therefore funds could not be used to prepare arguments for or against a statewide ballot issues. Of further note is that this is in addition to the TABOR comments which are received from the public in support or opposition to a tax measure.

On February 18th, Governor Hickenlooper signed into law the much anticipated Local Government Election Code, legislatively known as HB-1164. HB-1164 was crafted to resolve several inconsistencies between special district election requirements and the new election provisions created by the passage of HB-1303 last year. HB-1164, codified at Section 1-13.5-101 et seq., C.R.S., applies to any district, business improvement district, Title 32 special district, authority or political subdivision of Colorado that is authorized by law to conduct an election. It does not, however, apply to counties, school districts, RTD or municipalities.

Special districts that are unable to cancel their election will be permitted to follow one of the following election options: (1) hold a coordinated election with the county (primarily for November elections); (2) conduct a polling place election; or (3) carry out an independent mail ballot election. In circumstances where a special district opts to proceed with a non-coordinated polling place or independent mail ballot election, the new Local Government Election Code will govern the operation of that election.